2015. Frank B. Cross-Constitutions and Religious Freedom-Cambridge University Press.pdf

7/23/2019 2015. Frank B. Cross-Constitutions and Religious Freedom-Cambridge University Press.pdf

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Constitutions and Religious Freedom

Many of us take for granted the idea that the right to religious

freedom should be protected in a free, democratic polity. However,

this book challenges whether the protection and privilege of

religious belief and identity should be prioritized over other

rights. By studying the effects of constitutional promises of

religious freedom and establishment clauses, Frank B. Cross

sets the stage for empirical questions that examine the conse-

quences of such protections. Although the case for broader protec-

tion is often made as a theoretical matter, constitutions generally

protect freedom of religion. Allowing people full choice in holding

religious beliefs or freedom of conscience is central to theirautonomy. Thus, freedom of religion is potentially a very valuable

aspect of society, at least so long as it respects the freedom of

individuals to be irreligious. This book tests these associations

and nds that constitutions provide national religious protection,

especially when the legal system is more sophisticated.

Frank B. Cross holds a joint appointment as the Herbert

D. Kelleher Centennial Professor of Business Law andProfessor of Law at the University of Texas. His scholarship

traverses several elds, including descriptive and normative

studies of judicial decision making, the economics of law and

litigation, and traditional policy and doctrinal issues in admin-

istrative and environmental law. Since 1998, he has published

more than twenty articles in various publications, including the

Yale Law Journal, Cornell Law Review, New York University

Law Review, andColumbia Law Review.


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Comparative Constitutional Law and Policy

Series Editors

T O M G I N S B U R G ,University of Chicago

Z A C H A R Y E L K I N S ,University of Texas at Austin

R A N H I R S C H L ,University of Toronto

Comparative constitutional law is an intellectually vibrant eld

that encompasses an increasingly broad array of approaches and

methodologies. This series collects analytically innovative and

empirically grounded work from scholars of comparative consti-

tutionalism across academic disciplines. Books in the series

include theoretically informed studies of single constitutional

jurisdictions, comparative studies of constitutional law and

institutions, and edited collections of original essays that

respond to challenging theoretical and empirical questions in

the eld.

Volumes in the Series

Comparative Constitutional Designedited by T O M G I N S B U R G

( 2 0 1 2 )

Consequential Courts: Judicial Roles in Global Perspective

edited by D I A N A K A P I S Z E W S K I , G O R D O N S I L V E R S T E I N , A N D

R O B E RT A . K A G A N ( 2 0 13 )

Presidential Legislation in India: The Law and Practice of

Ordinancesby S H U B H A N K A R D A M ( 2 0 1 4 )

Constitutions in Authoritarian Regimesedited byT O M G I N S B U R G A N D A L B E R T O S I M P S E R ( 2 0 1 4 )

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S U S A N H . W I L L I AM S ( 2 0 1 4 )

Constitutionalism in Asia in the Early Twenty-First Century

edited by A L B E R T C H E N ( 2 0 1 4 )

Constitutions and Religious Freedomby F R A N K B . C R O S S ( 2 0 1 4 )


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Constitutions andReligious Freedom

F R A N K B . C R O S S

University of Texas


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32 Avenue of the Americas, New York, NY 10013-2473, USA

Cambridge University Press is part of the University of Cambridge.It furthers the Universitys mission by disseminating knowledge in the pursuit ofeducation, learning, and research at the highest international levels of excellence.

www.cambridge.orgInformation on this title:www.cambridge.org/9781107041448

Frank B. Cross 2015

This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place without the written

permission of Cambridge University Press.

First published 2015

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication DataCross, Frank B., author.Constitutions and religious freedom/Frank B. Cross.

pages cm. (Comparative constitutional law and policy)ISBN 978-1-107-04144-8 (hardback)1. Freedom of religion. 2. Freedom of religion Socialaspects. 3. Constitutional law. I. Title.K3258.C76 2014342.08052dc23 2014001850

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Contents

Foreword by Zachary Elkins pageix

1 Why Freedom of Religion? 1

2 Religious Freedom Around the World 34

3 Measuring Religious Freedom 58

4 Social Factors and Religious Freedom 78

5 Constitutions and Religious Freedom 105

6 The Constitutional Protection of Religious Freedom 153

7 Religious Freedom and Society 185

Bibliography 209

Index 235

vii


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Foreword

Frank B. Cross is known for his straightforward and direct approach

to big questions, and this book is no exception. Indeed, this book

launches a frontal attack on not one, but a series of weighty questions

that have likely intimidated less ambitious scholars. In so doing, he

unsettles conventional wisdom and opens productive avenues into

the study of constitutions and religion that we will be traversing for

years to come.

Many of us take for granted the idea that the right to religious

freedom should be protected in a free, democratic polity. Not Cross,

who wonders why we would protect and privilege a religious basis for

beliefs and identity over any other. Crosss questions startle: Of how

much social or material value is religious freedom, really? This is a

provocative and arresting beginning, and it sets the stage for a set of

empirical questions that he answers clearly and succinctly in subse-quent chapters.

The empirical chapters unfold in a highly methodical and organ-

ized fashion as he builds the scaffolding for his core question: Does

religious freedom, once it is promised in higher law, yield real de facto

freedom? This question has been at the heart of constitutional anal-

ysis at least since James Madisons concern about mere parchment

barriers. Cross is highly adept and resourceful in his analysis of

relevant data on the question. He leads us through the meaning ofreligious freedom which we may have thought we knew and picks

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apart its various manifestations and observable attributes. In the

end, the question is whether constitutional guarantees enhance reli-

gious freedom over and above a set of other predictors such as the

countrys prevailing religion, its relative level of democracy, its rule of

law, and its per capita GDP. I know Crosss answer here, but there is

no reason to spoil the ending.

For those new to the intersection of religion and constitutional-

ism, Crosss book is a comprehensive and discerning guide. The sad

reality of scholarship is that many authors, because of either impa-

tience or arrogance, read the existing scholarship with just enough

attention to launch an idea. Cross, by contrast, seems to have dev-oured the last thirty years of empirical and theoretical work on the

topic with gusto, and has left behind a beautifully curated tour that is

anything but narrow and supercial. This is a book that requires a

pencil for marginalia and, perhaps, a credit card or a library card

handy: Cross leaves no question about where to go for further reading

and provides ample inspiration for such.

Zachary Elkins, co-editorCambridge Comparative Law and Policy series

x

Foreword


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1Why Freedom of Religion?

Although freedom of religion is often presumed, its protection isheavily disputed. Why should freedom of religion be constitution-ally protected when other freedoms are not? Why not protect a

broader freedom of conscience, which would shelter the religious

and the nonbelievers? Although the case for broader protection is

often made as a theoretical matter, constitutions generally protect

freedom of religion. This book examines the consequences of such

protections.

The original U.S. Constitution did not contain a guarantee of

freedom of religion, but such constitutional protection was soon pro-

vided in the Bill of Rights. The constitutional protection was placed

alongside freedom of speech in the very rst amendment, ahead of

property rights, the rights of criminal defendants, and other matters.

As such, freedom of religion is considered foundational to Americans.

Special respect for religious freedom is not unique to Americans.

Freedom of religion is widely protected by international law

(Scolnicov2011). The 1976 United Nations International Covenant

on Civil and Political Rights declared that everyone should have the

right to freedom of religion. The 1981 United Nations Declaration onthe Elimination of All Forms of Intolerance and of Discrimination

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Based on Religion or Belief proclaimed that religion or belief is

one of the fundamental elements in . . . [a persons] conception of

life that should be fully respected and guaranteed. It proceeds to

lay out particular elements to be protected.

Few ask why religious freedom should be guaranteed constitu-

tionally, but the question is a relevant one. It may be that religion is

undeserving of special constitutional protection. Even if we deem

freedom of religion to be worthy of such exalted status, the purpose

of such protection should be relevant to the manner in which such a

constitutional provision is interpreted and applied.

At the threshold one might want to dene religion, so as to knowwhat freedoms are protected. The denitional question has proven to

be a challenge. Neither social science nor law has settled upon a clear

denition. Many denitions erect a canopy so large that atheism and

most college sororities would qualify as religions(Grim2004, 78).

Asad (1993) contends that there can be no universal denition of

religion.

Leiter (2010) argues that religion has certain unique characteris-

tics, such as the issuance of categorical (nonconsequentialist) demandson action and a reliance on faith, rather than reason or evidence,

for beliefs. Feofanov (1994) employs a similar denition, as do many

others. The most common denition typically relies upon a belief in the

sacred or supernatural as fundamental, though some groups, such as

Buddhists, have an ambiguous belief in the supernatural.

Koppelman (2010) takes issue with Leiters denition but con-

cedes that no denition of religion works very well. Much like pornog-

raphy, he suggests that the denition of religion is simply that [w]e

know it when we see it (Koppelman2010, 976). If religion is to be

protected (or limited), though, it must be dened. Some contend that

prevailing denitions have produced only a mess or a quagmire

(Feofanov1994). But denition is dangerous. It risks excluding true

beliefs as not qualifying as religious. Sullivan (2006, 924) contends

that religion cannot be dened in such a way that it can be legally

protected and maintained as separate.

There may be no good denition of religion, but Sullivans view is

too gloomy, and the difculty need not be a serious problem. Disputestend to arise only at the boundary. Thus, Europeans debate whether

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Scientology should be considered a religion or a cult. While this may

be important very important to some the vast majority of religious

freedom issues are not such boundary problems, so a precise deni-

tion is unnecessary for a general assessment of global freedom of

religion. Lupu (1996, 358) notes that the combination of cultural

pluralism, pragmatism, and experience suggests that the deni-

tional problem is not great, as we have conventional understandings

of what constitutes religion.

The Justication for Protecting Religious Freedom

The right to choose ones religion is a constitutional protection not

offered to other individual choices. There is no constitutional right

to choose what one eats, for example, though that is undeniably

important to people. Religion is an important area of individual

autonomy, but so are choices of dress or vocation or countless other

areas of personal autonomy. The privileged status of religion in

constitutions may fairly be questioned. This is especially truewhen religious freedom appears to conict with other freedoms,

such as gender rights.

Brian Leiter is a legal philosopher and academic who has ques-

tioned the reason for privileging religion. He claims that no one has

offered a credible principled argument for tolerating religion itself, as

opposed to other personal choices. While there are ample philosoph-

ical justications for tolerating personal differences, he says that

religion may not be so special as to warrant a specic constitutional

protection. He suggests that there is no principled reason for consti-

tutions to single out religion for special legal protection.

While Leiter is especially vigorous in pursuing the point, he is

not alone in the theory. Ronald Dworkin (1986) basically agrees.

Christopher Eisgruber and Lawrence Sager (2007, 6) argue for

equal liberty which denies that religion is a category of human

experience that demands special benets and/or necessitates special

restrictions. They suggest that any deeply held concern of persons

should be given equal regard, though they recognize that the historyof religious violence might cause constitutions to single it out.

3

Why Freedom of Religion?


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Religion may be no more important to a person s conception of

who she is than other terms based on such diverse factors as personal

relationships (mother, sister) profession (engineer, lawyer), race

(Hispanic, Native American), political afliation (Republican,

Libertarian), special skills (violinist, gardner), socioeconomic status

(yuppie, homeless), residence (New Yorker, Westerner), or individual

habits, tastes activities, interests, or loyalties (vegetarian, Cubs fan)

(Smith1991, 203). Religion would not be the primary identier for

many and does not plainly merit special status. Some argue that

religious belief cannot be qualitatively distinguished from other

belief systems in a way that justies special constitutional consider-ation (Marshall1991, 320321). Yet others arguing to the contrary

contend that religion is of unique importance to people (Greenawalt

2008).

Leiter would not deny all legal recognition to religion. But he

suggests that it merits tolerance rather than respect. As a conse-

quence, religious freedom should be more readily compromised

when it conicts with other societal interests. Hamilton (2005), mak-

ing a similar argument, notes that religion is not a particular goodand that religious groups should not be generally exempted from

secular laws. This notion is related to a concept known asproportion-

ality, which will be discussed later in the book.

Some disagree with Leiter. They contend that religion is special

and more than simply a peculiarly form of freedom of speech and

assembly, privacy, and autonomy (Witte 2005, 250). Perhaps reli-

gion is a uniquely important aspect of human autonomy. It has been

called a dening feature of the human personality(Boyle & Sheen

1997, 11). For many, religion is simply more important than other

aspects of personal life (Greenawalt 2008). Traditionally, religious

beliefs have been considered important enough to die for, to suffer

for, to rebel for, to emigrate for, toght to control the government for

(Laycock1996, 317). Other choices have not seen this response.

Religion could thus be justied as a matter of degree if not of kind.

The choice of a theoretically organizing principle for ones life may

transcend ones choice of food or clothing or other common individual

daily choices (Eisgruber & Sager1994). Thomas Jefferson declaredthat the constitutional freedom of religion was the most inalienable

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and sacred of all human rights(Smith1991). Beliefs about religion

are often of extraordinary importance to the individual (Laycock

2011, 951). Religious goods may be distinctive ones, more important

than other material matters.

Finnis (2009) contends that religion is special in its direction of

truths about humanity and the world. Religious freedom has long

been justied a sa unique source of individual and personal identity

(Witte2005, 250). But religion itself is not truly so unique as such a

source of personal identity. Many people have no religious belief, but

they are not without individual and personal identities; they simply

nd their identities in other sources, which may be constitutionallyprotected. Secularists have their own moral beliefs. One may nd

ones personal identity in a theory such as Marxism or even racism,

for example, which is not generally considered a religion. Leiter notes

that religion is not grounded in reason so much as in faith, and that

religion has certainly been a source of societal bads throughout

history. Desmond Tutu (1996, xv) has declared that religion should

produce peace, reconciliation, tolerance, and respect for human rights

but it has often promoted the opposite conditions.

As such, religionmight not merit special protection.

The Historical Case for Freedom of Religion

The historical case for singling out religion for constitutional protec-

tion may be simply a pragmatic one. History has shown that religion

has been a powerful force in the broad oppression of individuals,

singling them out for death, among other sanctions. Perhaps we

protect religious freedom merely because religious oppression has

historically been a force of great harm and strife (Garvey 1996a).

Throughout history, governmental attempts to suppress religious

views had caused vast human suffering (Laycock 1996, 317).

Because religious beliefs are so deeply felt, they lead to a particular

risk of conict (Lupu1996). It is not accidental that religion is the

oldest human right to be internationally recognized (Venter 2010).

Historically, religion is more likely to be a ground of persecution(Nussbaum2008, 165). Over two hundred million persons have been

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killed due to their religious afliations throughout recorded history

(Barrett & Johnson 2001). The same cannot be said about other

personal choices, such as food and clothing. Most people are familiar

with this history, and it is beyond the scope of this book to engage in a

historical tour de force of oppression in the name of religion, but I will

undertake a brief review.

The classic case of religious oppression is probably that of the

Spanish Inquisition of the fteenth century. At the outset, the

Inquisition was an attempt to drive out Christian heretics, but it

soon turned to the Jews, among others. Jews were arrested and

tried, and hundreds or thousands were burned at the stake. Somewere tortured. Many had their wealth conscated, and large numbers

ed Europe to avoid oppression. The Inquisition is a dramatic story of

the consequences of a lack of religious freedom, but there are others.

Pogroms against the Jewish religion are unfortunately common

throughout the history of the Middle East and Europe. Russia has

seen a series of anti-Jewish pogroms over the past two centuries.

Religious oppression arguably came to a head with Nazi

Germany. The Holocaust saw the execution of millions of Jews, forno reason other than their religious faith. Before the killings, though,

there was a steady pattern of persecution. The Nuremberg laws of

1935 prohibited, among other things, intermarriage among Jews and

Christians. Jews were denied the right to vote and hold ofce. Jews

were required to wear yellow badges when out and were conned to

ghettoes. The oppression steadily escalated, of course, ultimately

leading to death camps.

Historic religious oppression continues to this day, often unrecog-

nized. In 19992001, inter-religious violence in Indonesia caused

thousands of deaths and hundreds of thousands of internally dis-

placed persons (Sidel2006). The nation of India has seen spasms of

violence directed at Muslims and Sikhs. Hindus, in turn, have suf-

fered at the hands of Islamists. The former nation of Yugoslavia

saw a civil war resulting from violence among Catholics, the

Orthodox Christians, and Muslims. Islamic nations today engage in

various acts to repress the beliefs of Christians, Jews, and disfavored

Islamic sects. Various nations in Africa are seeing a struggle betweenMuslims and Christians.

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Marty (1996, 2) suggests that the monstrous totalitarian systems

of the twentieth century, be they Fascist, Nazi, Communist, Maoist, or

whatever, set out to suppress rights, beginning with those of religious

people. If in earlier times, it was more typical for one religion to

repress others, a more recent phenomenon is that of irreligious

autocrats repressing religious believers. Because of the strong inuence

of religion on people and the potentially subversive organizing role of

churches, the suppression of religious freedom may be particularly vital

for would-be autocrats. Thus, religious freedom may be uniquely impor-

tant to humans. One suspects that few would have suffered torture and

death in order to continue their eating habits, unlike their religiousbeliefs. The Pilgrims ed across a dangerous North Atlantic to a dan-

gerous American wilderness to avoid an ofcial church and religious

persecution. It has been said that tolerance has been particularly

difcult to achieve in the sphere of religion (McClosky & Brill 1983,

103). Laycock (2011, 951) suggests that it was uncontroversial to claim

that attempts to suppress dissenting religious views had caused vast

human suffering and social conict.

Historically, the struggle for religious freedom has also been partof the ght for freedom more generally. There is a reason why free-

dom of religion, along with speech, is found in the very rst amend-

ment to the U.S. Constitution. In the eighteenth century, as in

preceding centuries, the efforts to gain religious liberty were central

to the struggles for freedom of belief, paving the way, by argument

and physical resistance, for the later struggles for democratic rights

in general (McClosky & Brill 1983, 103). Religious freedom was

central to Enlightenment recognition of individual freedom

(Scolnicov2011).

In addition, religious disagreement has been a common source of

conict and death. Muslims and Christians today battle in Nigeria

and other African nations. Conict has occurred even within broadly

dened religions. Protestants and Catholics fought a virtual civil war

within Ireland. And, as I write this book, Sunnis and Shiites are

engaged in a similar conict in the Middle East. Can freedom of

religious belief can help prevent such conict?

Indeed, empirical evidence reveals that religious freedom pro-motes peace. The restriction of religious freedom correlates positively

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with involvement in armed conict (Grim 2004). Religion is tradition-

ally a source of conict, which obviously continues in the present era.

And religious conicts may be more intractable, given the devoutness

of believers. McClosky and Brill (1983, 103) suggest that tolerance

has been particularly difcult to achieve in the sphere of religion.

The historical case of freedom of religion depends on contingency,

however. While religion has been used as a source of severe oppres-

sion in the past, this need not be so in the future. Some nations

(though certainly not all) appear to have transcended religious

oppression. Constitutional rights are not generally grounded in

historical accidents. And it may be, as later evidence in this bookwill show, that legal protection of religion is unnecessary to protect

against such oppression of individuals. Such oppression has typically

occurred in autocracies. Perhaps democratic governance provides

sufcient shelter for religious freedom, so constitutional protections

are simply superuous. In addition, the historical case does not

counsel universal religious freedom. A very small minority group

does not likely threaten strife, and fear of violence does not necessa-

rily argue against its oppression.

Is Religion a Particular Good?

Religion might be specially singled out for protection simply because

it is uniquely important (Engel2011). Smith (1991, 149) argues that

the religious justication is also the most satisfying, and

perhaps the only adequate justication for a special constitutional

commitment to religious liberty. Conkle (2011) suggests that

religious belief may be the only truly robust foundation for religious

libertys protection. For a believer, religion is quite important,

probably the most important choice of his or her life. For many,

eternity is at stake, which places religious choice considerably

above other individual preferences in terms of importance.

The importance of religion can be a double-edged sword,

however. If religious belief is such an enormous transcendental

decision, it becomes all too easy for a person to want to impose hisor her particular beliefs on others, to save their souls. The strong

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moral belief that slavery is wrong commonly prevents people from

choosing to practice human slavery. Likewise, a strong moral belief in

the truth of ones religion, and the falsity of others, can readily lead to

a decision prohibiting the following of the beliefs perceived to be false,

which could condemn a soul to eternal damnation. Thus, the extreme

importance of religious belief to many could easily form an argument

against religious freedom, so that the true religion might be

imposed on the people. History shows this tendency to be the case,

from the Catholic Church of centuries past to Islam in some contem-

porary societies.

A separate case for religious freedom might be found in the claimthat religious belief in general is pragmatically an afrmative good to

be encouraged by the state, without the states embracing any partic-

ular religious belief. This position does not rely on any intrinsic

philosophical value of religion; it merely contends that a peoples

religious faith, in whatever religion, is good for those people and for

society as a whole. Some have argued that, without religious belief to

keep them in check, people will regress to a state of immorality.

Dostoyevsky (1990, 589) warned that . . .

without god. . .

everythingis permitted. Garvey (1996b, 49) argues that the best reasons for

protecting religious freedom rest on the assumption that religion is a

good thing. Smith (1991) suggests that this was the foundation of

the First Amendment right. Religious belief, whether true or not,

could have functional value for a society.

Some conservative constitutional scholars have argued that the

American First Amendment should be interpreted only to protect

against discrimination among religious sects, while allowing govern-

ment favoritism toward religion generally. Religion in general argu-

ably should be encouraged. This actually parallels the law of freedom

of speech. Government is free to encourage speech as a broad matter

but to prohibit discrimination over the particular content of speech.

At rst blush, the thesis that religion is good for society might

argue against religious freedom. It might seem that, rather than

religious freedom, the best way to promote religious belief in a society

would be through the adoption of a compulsory and subsidized state

religion, to which all citizens must belong. King Louis XIV compelledthe inhabitants of Paris to attend mass or go to jail, which might

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seem an effective way of increasing religiosity. In 1646, Thomas

Edwards wrote that religious toleration was the greatest of all

evils because it would bring skepticism in doctrine and looseness of

life, then atheism (Porter 2000, 105). But this position reects a

nave vision of the role and power of government in society.

Greater religious belief may have various practical benets for a

society, calling for its encouragement. Economists have mused on the

effects of religion, and Max Weber (1930) famously argued that

Protestantism brought with it personal characteristics that fostered

capitalist economic growth. Webers theory is generally not supported

by research (Iannaccone1998); nevertheless, it is plausible that reli-gious belief could have economic consequences, as certain faiths may

encourage traits such as honesty, work ethic, and thrift

(McCleary & Barro2006a). Attitudinal studies have found that reli-

gion appears to be good for the development of attitudes that are

conducive to economic growth (Guiso, Sapienza, & Zingales2003).

Societies with freedom of religion may encourage entrepreneur-

ship, while [c]losed religious systems foul economic development and

stunt growth

(Malloch2008, 51). Conversely, resources devoted toreligion may be drawn from economically more productive activities,

so greater religiosity might have negative economic effects. Some

religious practices, such as prohibitions on consumption of certain

products, cannot help the economy. In addition, the social activities

common to religions may facilitate networks that are useful for eco-

nomic purposes.

McCleary and Barro (2006a) studied the association of religious

belief and economic well-being. They found that greater levels of

religious belief were associated with statistically signicant positive

effects on economic growth, while higher levels of church attendance

were associated with statistically signicant negative effects on eco-

nomic growth. Of course, belief and attendance were associated, with

the results separated out in a multiple regression. So the results

mean that greater religious attendance was negative when levels of

belief were held constant, not that greater religious attendance was a

per se negative. Still, the results suggest that religious belief is good

for economic growth and that more devout belief (as expressed inmore frequent religious attendance) can undermine this effect. The

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authors took statistical steps to show that they had found an effect of

religion on growth, not one of growth on religion. The evidence on

religious belief and economic growth provides at least some mild

grounds for encouraging religion.

Durlauf, Kourtellos & Tan (2005) have criticized these results.

They reestimated the study with different control variables and

found that none of the religiosity variables were statistically signi-

cant at the 0.05 level. The authors conceded that religion was poten-

tially relevant to growth but argued that there was no evidence to

suggest that any such effect was quantitatively important. The set of

countries studied by Durlauf et al. was relatively small, though.Various studies have considered the association of particular

faiths with economic growth, but their results are quite conicted.

Some research has shown that Islamic belief is associated with eco-

nomic growth. Others have reached different conclusions for Islam

while nding a positive effect for Orthodox Christianity. The pre-

sumed positive effect of Protestantism has generally not appeared.

A study within the United States found that Judaism and nonfunda-

mentalist Protestantism were associated with higher income, whileCatholicism and fundamentalist Protestantism were not (Heath,

Waters, & Waston 1995). The research on religious belief and the

economy is inconclusive, though there may be some positive effect.

Beyond the economy, religion may have a variety of positive

societal effects on the lives of believers. Religion is said to inculcate

in citizens the moral character necessary to a democratic society

(Smith1991, 199). Religious belief has been shown to increase altru-

istic behavior. For a Randian, this might not be such a positive, but

most Americans consider charitable giving a very good thing. And the

religious are more charitable. Brooks (2003, 41) found that religious

people are 25 percent more likely to donate money and 23 percent

more likely to volunteer their time in charitable work. The differences

attributable to religion were strong even after using controls on

ideology and income. Moreover, the religious were much more likely

to give to nonreligious charities. Grim (2009) found a positive effect of

religious freedom on numerous measures of social well-being.

The greater generosity of religious groups may be due to thecommands of their religions to be generous. They may feel a moral

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obligation to be generous to the needy. Or perhaps this is a character-

istic of group formation. Because religion is a community of sorts, the

religious may be more communitarian in orientation and hence more

likely to give. This is consistent with evidence that the religious are

more likely to participate in all sorts of voluntary associations (Smidt

2008). Thus, an atheist has suggested that [m]ore than any other

institution, religion deserves our appreciation and respect because it

has persistently encouraged people to care deeply for the self, for

neighbors, for humanity, and for the natural world and to strive for

the highest ideals humans are able to envision (Sheiman 2009, ixx).

The greater civic engagement of the religious may contributevaluable social capital to a society. It is religious life that purportedly

makes basic forms of civility and social restraint possible (Smidt,

1999, 176). At least the outwardly oriented religious groups foster

the growth of bridging social capital by motivating their members to

give and volunteer beyond their own communities of belief, through

inclusiveness that brings together socially, economically, and ethni-

cally diverse communities(Brooks2005, 167). Such social capital is

generally considered a valuable feature of a society.Social capital is commonly used as a general term for mutual

trust and cooperation in a society. Putnam (2000, 319) argues that

when trust and social networks ourish, individuals, rms, neigh-

borhoods, and even nations prosper. Greater social capital is asso-

ciated with many goods, including economic growth, social order, and

health (Cross2005). Religion offers regular opportunities for social

activity and interaction and so provides fertile terrain for the culti-

vation of friendships (Sherkat & Ellison 1999, 373). Members of

religious congregations are also more likely than nonmembers to

belong to a diverse range of voluntary organizations and to show

higher levels of social trust (Norris & Inglehart2004).

By fostering such social connections and contacts and facilitating

organizational abilities, churches might be expected to enhance

social participation outside the churches, an effect that has been

well documented (Peterson 1992). An investigation of the United

States and Canada found that religious tradition and church

attendance played an important role in fostering involvement incivil society (Smidt 1999, 176). People develop greater secular

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volunteering activities from religious community sources (Schwadel

2005). African American churches have been found to be vital sour-

ces of collective self-help and community development, moral reform,

social service delivery, community leadership, and political mobiliza-

tion (Sherkat & Ellison 1999, 375). An international study found

that for all beliefs, a higher attendance at religious services was

associated with higher levels of trust (Guiso, Sapienza, & Zingales

2003). Religion is not a necessary condition for altruism or social

capital, but it appears to provide a net increase, fostering social

connectedness. Hence, greater religious belief may offer a broad

benet to society generally. Smidt (2008) documents how the morereligious seem to have a greater civic morality on matters such as not

evading taxes.

Religious belief may also offer benets for individual believers.

A study of black male youth found that church attendance favorably

affected their school attendance and work activity and reduced the

level of socially deviant activity (Freeman1986). Studies show that

crime rates are negatively associated with religious membership (Lee

2006, Bainbridge 1989). Iannaccone (1998) summarizes various stud-ies indicating that religion tends to reduce various deviant behaviors,

including divorce, drug and alcohol abuse, and suicide. It is difcult to

establish causality here. It may well be that those who are genetically

predisposed to engage in deviant behaviors are simultaneously pre-

disposed not to be religious. But still, the association means some-

thing, as those with positive attributes commonly choose religion.

Religious belief appears to be positively associated with higher

levels of personal life satisfaction. A large study in Europe, using

numerous factors that could affect personal attitudes found that

greater religiosity had a statistically signicant association with

greater life satisfaction (Greene & Yoon 2004). An earlier study in

the United States reached similar conclusions (Ellison1991), report-

ing that the religious consistently showed higher levels of life satis-

faction, greater personal happiness, and fewer negative psychosocial

consequences of traumatic life events. This is generally true for differ-

ent religions (Cohen2002).

Elliott and Hayward (2009) studied the interaction of religion,government regulation, and life satisfaction. Both religious belief and

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personal freedom tend to be associated with greater happiness or

satisfaction. The study also found that the association between

church attendance and life satisfaction actually changes from pos-

itive to negative as government regulation increases (Elliott &

Hayward 2009, 301). A study in Sweden found that religious belief

was associated with fewer divorces, fewer children born out of wed-

lock, and less nonpayment of debt (Berggren1997).

Religious belief is also positively associated with mental health.

One study reported that those diagnosed as mentally ill were far less

likely to attend church (Stark 1971). Religion may be valuable in

helping humans cope with stress and suffering and may psychologi-cally benet the believer. From a Freudian perspective, religion may

offer people a tool to control the inherent natural destructiveness of

their innate impulses. The evidence is not conclusive, and the reli-

gious may suffer different problems, but it appears that this may

offers another benet of belief (Ellison1998).

Religion may also offer benets in physical health. Religious

belief appears to make alcohol abuse less likely (Koenig, George,

Meador, & Blazer 1994). Iannaccone (1998) reports that hundredsof epidemiological studies, with precautions taken to avoid spurious

correlations, have consistently found that religious belief was asso-

ciated with a variety of health benets, physical and mental. These

effects may come from discouragement of unhealthy behavior, com-

munity support, or the enhancement of self-esteem and personal

efcacy (Sherkat & Ellison 1999). Some caution is required, as the

research does not use the sort of controlled tests employed in medi-

cine, but the sheer bulk of the research provides strong evidence that

religion may be benecial. The evidence generally indicates that

religion is broadly benecial for the individual, and that this relation-

ship holds up across a variety of measures both of religion and of well-

being (Elliott & Hayward 2009, 285). Hummer, Rogers, Nam, &

Ellison (1999) report that religious belief in the United States is

associated with lower mortality. Studies throughout the world have

found that religious participation, including activities such as prayer

and meditation, are associated with greater human well-being.

Overall, the research is clear that greater religiosity is generallybenecial for human health and well-being (Lehrer 2004a). Even

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defenders of atheism acknowledge that the research shows religiosity

to be associated with greater life satisfaction and psychological

well-being (Zuckerman2009).

Most of the research on the potential individual benets of reli-

gion has been conducted in the United States, but the association

does not appear to be limited to this country. A study of Venezuelan

evangelicals indicated that religion could be a means to overcome

addiction, violence, and other personal and social difculties (Smilde

2005). And the global association of religious belief with greater life

satisfaction demonstrates that the effect is not one unique to

America.One difculty with the study of the individual benets of reli-

gious belief, though, lies in a selection problem. These studies are

not clinical tests in which individuals are assigned to religious

beliefs or nonbelief. It may be that those who would benet from

religion choose religion, while those who do not choose religion

would draw no benets from faith. Or some unrelated third factor

might explain the correlations. Perhaps some underlying environ-

mental or even genetic factor tends to yield both religious belief andcharitable action. If so, religious belief is not a cause of charity.

These are only possibilities, though, and the general association of

religious belief and human welfare, for some at least, suggests the

benets of belief. Freeman (1986, 373) addresses the difculty of

establishing causality but argues that the pattern of statistical

results suggests that at least some part of the churchgoing effect is

the result of actual causal impact.

Economics of Religion

There is a growing movement viewing religion in economic terms. In

this context, competition is productive. A single, state-directed reli-

gion, by contrast, would be inefcient and ineffective. The state can

compel attendance at religious functions, but it cannot compel belief.

A state-controlled religion may cause stagnation such that it produ-

ces less belief in the state religion than would exist if it were not thestate religion (Iannaccone, Finke, & Stark1997).

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An ofcial state church is in a monopoly position. Economics

teaches us that monopolies have a tendency to take excess prots

and underproduce goods or services, while becoming stagnant due to

a lack of competition. A state church needs to make fewer efforts to

appeal to people, and religion becomes intertwined with the state itself,

causing resentment (Fox 2008a). Gill (1999) reported that the dominant

Latin American Catholic Church serviced the wealthy and neglected

the poor. These negatives do not require a formal state church, as any

market power, such as could come from government favoritism, would

have a similar, if lesser, effect. Adam Smith thus argued that religious

freedom would produce religious competition, which would generategreater religious activity and produce higher-quality religious services,

just as in any other market. The competition generates religious prod-

uctsthat are high in quality and well-aligned with individual prefer-

ences(McCleary & Barro2006a, 50).

In addition, diversity by itself should promote religious belief.

Just as different people prefer different products, they might be

expected to prefer different religious beliefs. A creed that is more

accepting of womens rights might be expected to attract morewomen. Some people are more conservative and traditional and

would prefer such values in their religious doctrine, whereas others

might prefer the opposite. A single religion with dened beliefs will be

less able to adapt to different personal preferences than will a variety

of different religions with distinct belief systems.

There is evidence to support this hypothesis. A study of early

twentieth-century America found that cities with higher rates of

religious diversity had higher rates of religious afliation and prac-

tice (Finke & Stark1988). Stark and McCann (1993) found that the

religious activity of Catholics was greater in regions where they

represented a smaller fraction of the population. An empirical anal-

ysis of answers on the World Values Survey found that religious

pluralism was associated with religious belief (McCleary & Barro

2006a). It is also positively associated with monthly church attend-

ance and belief in heaven and hell (Barro & McCleary2003a).

North and Gwin (2004) used U.S. State Department reports to

dene the level of religious freedom in various countries. The authorsfound that an ofcial state religion, registration requirements, and

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other scales of restrictions on religious freedom consistently associ-

ated negatively with religious attendance. This is consistent with the

nding that greater government entanglement with religion,

whether aimed positively or negatively, tends to undermine popular

religiosity.

The association between pluralism and religious participation

seems a logical one, but it is still sometimes disputed. Breault

(1989) reanalyzed some of the results of Finke and Stark and found

that including consideration of Catholic population made the rela-

tionship disappear. However, because Catholicism is a religion, the

ndings do not necessarily refute the hypothesis, absent evidence ofidentical Catholic participation in the presence of greater pluralism.

Internationally, many nations without pluralism have higher levels

of faith-based behavior (Norris & Inglehart2004).

Gill (1999) examined the growth of Protestantism in Latin

American countries that were traditionally Catholic. He tested the

theory that religious freedom would be associated with increased

religious diversity and participation in twenty nations. Using an

index of state religious regulation for these countries, he consistentlyfound strong statistical associations between religious freedom and

broader religiosity.

Some research nds that the existence of a state religion is

associated with lower rates of church attendance (Chaves & Cann

1992), though other research reaches the opposite conclusion

(Barro & McCleary 2003a). Highly regulated religious economies,

via state religions or subsidies, have been associated with reduced

religious participation in Western Europe (Stark & Iannaccone

1994, Barro & McCleary2003a). These studies do not show causa-

tion, and some evidence suggests that pluralism does not itself

promote participation (Chaves & Gorski2001). There is some evi-

dence to support the theory that religious pluralism encourages

greater religious belief. In general, there is a correlation between

rates of religious diversity and overall religious participation

(Iannaccone1998).

A mathematical problem arose with much of this research, how-

ever, deriving from the calculation of diversity. For example, Voas,Olson, and Crockett (2002) demonstrated that, depending on the size

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distributions of religious denominations, there was likely to be a

statistically signicant positive association, even when pluralism

has no effect on participation. The authors reviewed several large

past datasets to show this effect.

Not all studies have used the pluralism variable that these

authors found debatable. For example, Fox and Tabory (2008)

studied the effects of state regulation of religion on religious partic-

ipation and belief. They found that countries with greater levels of

separation of church and state tended to have higher levels of reli-

giosity. Practice was affected relatively more than belief, but the

results conrmed the preceding economic hypothesis.Less rigorous historical evidence also conrms the economic

hypothesis. In America the deregulation of religion in the First

Amendment increased the level of religious competition and mobili-

zation and produced dramatic increases in church adherence (Finke

1990, 623). This nations eforescence of religious pluralism and

belief may thus be traceable to the constitutional guarantee. The

previously established religions (Episcopalian, Congregationalist,

and Presbyterian) saw their

market share

decline dramaticallyunder constitutional religious freedom (McConnell & Posner1989).

In addition, a state religion is by denition state as well as

religion. The decisions made will be motivated by the interests of

the state as well as those of religious groups. The interplay between

popes and kings in feudal Europe reveals that pragmatic negotiation

required when state and religion overlap. Hirschl (2010) notes that

the effect of a state religion is to co-opt religion on behalf of the

interests of the state. With state recognition and funding come

state regulation and monitoring(Hirschl2010, 51). Thus, state sup-

port for religion may incidentally undermine religion itself.

There is ample reason to believe that religious freedom serves to

encourage religious belief. If such belief is a good thing, that would

justify the freedom. Leiter (2008) has suggested that religion may

more systematically produce harms, because it may contain catego-

rical commands that are divorced from evidence or reason. Religious

wars have killed many in Africa and Asia and even Western countries

such as Ireland. These extreme events might suggest that religion notbe encouraged.

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It would be a mistake, however, to extrapolate the generalized

consequences of religious belief from such extreme cases. One must

also consider the more typical effects of religious belief, and religious

freedom by promoting religious diversity might well serve to counter-

act the religious extremes. Adam Smith claimed that the zeal of

religious radicals could be dangerous only where religious diversity

was limited (Iannaccone1991).

It is the absence of religious freedom that may produce such dan-

gerous extremism. And government involvement with religion may be

associated with greater religious violence (Iannaccone & Berman

2006). Broad religious diversity and religious freedom in the UnitedStates is largely associated with pacic religious practice. The more

government is involved in religion, the greater the need for believers to

assume political power on behalf of their faith, which may include

violence. The violence and terrorism sometimes associated with

religious belief may be a function of a lack of religious freedom.

Politics and Religion

Religion may also serve a useful political function. Religious organ-

izations are the original nongovernmental organizations (NGOs). As

such, they can supplement government efforts and possibly resist

government abuses, even those unrelated to religious liberty. Gill

and Lundsgaarde (2004, 400) note that religious organizations are

often the creators and purveyors of important values, beliefs, and

norms that affect how people behave politically. Religion is a com-

peting power center. Religions can mobilize people for action, includ-

ing political protest (Gill 2001). Globally, membership in religious

associations is signicantly associated with voting, signing petitions,

attending demonstrations, and joining strikes (Norris & Inglehart

2004). Of course, some suggest that religion is an opiate for the

masses that precludes their political activism, but this is not demon-

strated empirically.

The 1980s saw a world democratization wave involving

dozens of countries moving out of autocracy. In many nations, thistransition was led by the religious, in particular the Catholic Church

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(Philpott 2007). Unsurprisingly, this progressive effect was much

more profound among religious groups that were not preferred by

the state. National churches did not oppose authoritarian govern-

ments, or did so only weakly. The increasing competition that the

Latin American Catholic Church was receiving from evangelical

Protestantism may have helped drive them to push for democracy.

Indeed, it appeared that the greater religiosity of a church commun-

ity was associated with more pressure for democratization

(Philpott2007). Religion was central to both the downfall of Soviet

communism and the development of democracy in former communist

countries (Richardson2006).Within the United States, religion has played an important role

in African-American politics. Rather than serving as an opiate, reli-

gion has inspired the community to activism. Harris (1994) describes

how religion has served as a political resource for the community and

as a catalyst for its mobilization. The church provides physical organ-

izational resources and psychological forces for activism. Greenberg

(2000) similarly reports that churches can be important networks for

political activism, especially in the African-American community.Mattis (2001) explores the great importance of religion to black polit-

ical action in the United States. She notes how biblical passages have

provided great force in the struggle for racial equality and how black

churches have strengthened this message.

The church, and religion generally, is commonly regarded as a

mediating institution of society. Like other such institutions, it

countervails against the power of government in society and may

protect individual liberties of all sorts. James Madison himself rec-

ognized that independent religions could serve as a check on the

tyranny of the majority. To repeat, religion may be the original

NGO (nongovernmental organization) and as such benecial.

Mediating institutions have various merits. Neuhaus and Berger

(1977) argued that it was necessary to have such institutions stand-

ing between individuals and large institutions of public life in order to

prevent tyrannical abuses. They claimed that their mediating struc-

tures were essential for a vital democracy and empowered people

throughout society. The actions of such institutions may supplementor balance governmental interventions.

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All private organizations may serve the function of mediating

institutions, but religious groups may be especially valuable.

Churches were the rst major NGOs (Berger 2004). Churches can

foster diversity and act as a buffer between the individual and the

state (Marshall1996). Religious afliation can serve as the base for

group cohesion necessary to successfully challenge established insti-

tutions and practices(Noland2003, 1).

Putnam (2000), who has written extensively on the question,

contends that religious organizations are uniquely important in

American civil society. Religion is described as the single most

important repository of social capital in America (Putnam 2000,66). Churches provide numerous social activities unrelated to reli-

gion and may be an incubator for people developing their participa-

tory skills. Religiosity is highly correlated to civic engagement, as

previously discussed.

In U.S. history, religion was a particularly powerful force in the

struggle for African American civil rights providing organizational

and symbolic resources, leadership, a premobilized constituency

embedded in dense social networks, and an indigenous source offunding (Sherkat & Ellison 1999, 369). President Lincoln was openly

motivated by religion in his antislavery position. In todays world,

religious conservatives are quite active on other matters such as

public policy toward abortion and gay rights, and religious liberals

on matters such as war and the death penalty.

Any individuals view of the current political role of religious

groups probably depends on that individuals ideology, though

churches can be found on both sides of many major political issues.

If one believes in individual rights, the political positions of religious

groups are at best a mixed bag in this nation. Some religious beliefs

are contrary to freedom and democracy. Historically, however, the

progressive force of religion on behalf of civil rights probably over-

whelms other more negative effects. Tocqueville believed that reli-

gion was necessary to the success of democracy, though it seems more

likely that religious choice is the key (Fradkin2000).

Some have argued that the net political role of religious belief is a

positive one. Habermas (2006, 7) concluded that religion had value instabilizing and advancing a liberal political culture. There is a

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growing literature which argues that religion can be used to support

tolerance, reconciliation, and human rights(Fox2008b, 930), though

religion may at times support the opposite ends. Tocqueville suggested

that religion may be necessary to sustain (as well as to moderate)

individualism and material prosperity and thus may be doubly neces-

sary to the future success of democracy(Fradkin2000, 88).

Religion has sometimes played a very important political role

overseas. The Catholic Church played a signicant role in the fall of

Polish communism. The World Council of Churches had an important

part in the fall of apartheid (Fox2008b). In the Latin America of the

1970s, religious diversity played a role in defending human rights,perhaps to help attract followers (Gill 1994). When the state had

established a religion, it tended to side with the oppressive state.

But when a religion had to compete for followers, it tended to support

human rights.

The net political effect of religion and religious freedom is surely

uncertain. A strong fundamentalist group might stie democracy and

oppress opponents, but such a group is unlikely to encourage greater

religious freedom. In a nation with broad religious diversity, funda-mentalists are less likely to assume such oppressive power. The con-

temporary extremist tendencies of Islamic fundamentalism appear to

be tamed by participation in a liberal democracy (Nasr1995).

Moreover, one must consider why a state would deny its people

religious freedom. In some cases, it may simply be religious fervor of

national leaders or people who disrespect other faiths. But this can-

not explain many cases. China, for example, is an atheist society that

allows some religion but periodically cracks down on certain religious

groups. It seems likely that an autocratic state views religious organ-

izations as competing centers of power that could represent a threat.

Religion or Freedom

The identied benets of religion to individuals should not be too

surprising. In the United States, religious belief is an individual

choice. Although people certainly make bad choices at times,we presume that their choices are more often than not in their

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self-interest. This is a presumption of freedom of all sorts. As such, it

is reasonable to presume that individual choices tend to produce a net

benet to those individuals. In these circumstances, the religious

beliefs of people should generally be a good thing. And what is best

for individuals presumably will be best for the general society as well.

The case for protecting religion as an innate good is much shakier

than the evidence might suggest, however. As already noted, religion

has occasionally been the source of some very bad things historically.

While the studies of individuals have shown benets from religious

belief, the evidence is much weaker on a state level, and many

nonreligious people can attain these benets.The Gallup polling service has conducted measures of religiosity

throughout the world and within this country. Individuals were

asked: Is religion an important part of your daily life? The ve

countries with the highest rate of yes answers were Egypt,

Bangladesh, Sri Lanka, Indonesia, and the Congo. Those with the

fewest positive answers were Estonia, Sweden, Denmark, Norway,

and the Czech Republic. The latter group had 21 percent of individ-

uals or fewer answering yes. The highest rate of atheism is reportedlyfound in Sweden, which has a high standard of life by international

standards. The more secular countries typically show higher levels of

happiness, less crime, greater equality, and better health and educa-

tion (Zuckerman2009). They tend to have more freedom and be more

prosperous.

Looking at the relatively more and less religious countries, one

would be hard pressed to claim the societal benets of religious belief.

The less religious countries appear to be more functional and protec-

tive of the rights and interests of their people. They certainly are

wealthier. Perhaps it is the greater wealth of the nations that makes

them less religious, a prospect that will be discussed shortly.

Regardless, it is clear that countries with high levels of religious

belief may show considerable pathologies, including terrorism,

while countries with low levels may be ne and healthy places to

live. The international comparison makes it difcult to make the case

that greater belief in religion makes societies better. Indeed, Paul

(2005) performed this comparison for developed countries and foundthat greater religion actually correlated with higher rates of

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homicide, STD infection rates, teen pregnancy, and abortion.

Homicide is highest among highly religious nations (Fajnzylber,

Lederman, & Loatza2002). Any claim that atheists are more likely

to be immoral has long been disproven by systematic studies(Beit-

Hallahmi2007, 306).

Sundry studies have suggested that religious belief increases

personal happiness, on average. Opnger (2010, 8) conducted an

international study that found the association was one of a U shaped

pattern. While especially high levels of national religiosity were

associated with high levels of happiness, so were especially low

levels of national religiosity. Relatively secular nations may besuccessful and happy. Of course, this study was based on national

averages and not individuals. The author theorized that a common

culture (whether religious or secular) was a key factor.

It is important to note that the studies showing the benets of

religious belief for individuals and communities generally exist in a

climate of religious freedom. They may simply display the value of

individual choice, not religion qua religion. Those who chose religious

belief may simply have bene

ted because they perceived, perhapsimplicitly, that it would be valuable to them. Others, who perceived

no such benets from belief, may have beneted from nonbelief, but

this has not been studied. So even if religion itself is not a per se good,

religious choice may be. Of course, it is this choice that is generally

protected by freedom of religion, as addressed in the following seg-

ment of the book.

The positive effects of religious belief may simply be the effect of

religious freedom. At the time of the drafting of the Constitution,

many believed that religious belief and practice are efcacious only

when voluntary(Laycock1996, 324). While religion has been much

studied, the effect of freedom with religion has not. One clear appa-

rent benet of religious belief lies in social capital. A recent study of

European nations found that state support of religion did not increase

its effect but signicantly decreased the value of religion to society,

whether measured in religious membership, volunteering, or dona-

tions (Traunmuller & Freitag 2011). While researchers have

struggled to nd an effect of religious belief on economic growth,one study found that religious freedom was positively associated

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with growth, even after controlling for economic freedom and other

relevant variables (Alon & Chase 2005). And Elliott and Hayward

(2009) found that it was religious freedom, not religion itself, that

was associated with happiness. When religious activity is

voluntarily chosen, people will be more likely to adopt self- and

other-stereotyping that enhance their psychological well-being

(Elliott & Hayward2009, 290).

Fukayamas(2011, 37) world history declares that religion has

been a source of social cohesion that permits human beings to coop-

erate far more widely and securely than they would if they were the

simple rational and self-interested agents posited by the economists.All historic societies, to our knowledge, have been religious. Pinker

(1997) suggests that religion is built into the brain through evolution

because of the cooperative benets it supplies. Gioso, Sapienza, and

Zingales (2003) report that religious afliation and participation

were associated with more cooperative attitudes.

Religion clearly has a great benet for many people, and reli-

gious belief appears to offer certain societal benets as well, over

and above what intrinsic libertarian value is offered by religiousfreedom. The advantages of religious belief may only occur in soci-

eties that offer their citizens freedom of religion. If religion is forced

on the people, or oppressed, those benets may not arise. It is the

virtue of freely chosen religious beliefs that is the value to be pro-

tected. Moreover, it is possible that freedom of religion may be of

benet to nonbelievers, addressed in the following section of this

chapter.

Religious Freedom and the Irreligious

Leiters argument seems grounded in opposition to the conservative

constitutional position that religion is to be encouraged as special and

greatly privileged. But this interpretation is not how the law has

generally developed. Religious freedom has been used to protect the

rights of nonbelievers against the demands of the religious. Under

the U.S. Constitution, at least, secularism is often protected fromreligion, much as if it were a religion. Laycock (1996) contends that

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any coherent concept of freedom of religion must also protect the

atheists, agnostics, and secularists.

Indeed, atheists may be particularly in need of constitutional

protection. In the United States, a negative view of atheism is perva-

sive, and atheists may be at the top of the list of groups Americans

dislike (Zuckerman2009). The constitutions of South Carolina and

Arkansas ban atheists from holding public ofce. There is evidence

that the American people disfavor atheists and agnostics more than

any other material minority group (Edgell, Gerteis, & Hartmann

2006). A majority of Americans reportedly would not vote for an

atheist for president. None of this is apparently constitutionallybased.

The U.S. Supreme Court has frequently used national constitu-

tional religious provisions to advance the rights of atheists. Free

exercise may be interpreted as the right not to exercise a religious

belief. In Torcaso v. Watkins (1961, 495, n.11), Justice Hugo Black

listed secular humanism as a First Amendment religion. The Court

has held that the First Amendment protects the conscience of the

in

del or the atheist

(Wallace v. Jaffree 1985). In the salient decisionin United States v. Seeger (1965), the Court reversed a conviction of a

party who refused induction into the military services because of his

conscientious objection, which was not grounded in traditional reli-

gious beliefs. While the case involved a statute and not the

Constitution, the court held that religion simply meant a mans

devotion to the highest ideal that he can conceive (United States

v. Seeger 1965, 862). Belief in a supreme being or deity was not

required, just a belief and devotion to goodness and virtue for their

own sakes (United States v. Seeger1965, 854).

The U.S. Constitution is said to neither advance nor inhibit

religion(Board of Education of Kiryas Joel v. Grumet1994, 719). It

merely ensures each individual the right of conscience, to follow a

faith or not. The constitutional provision provides some additional

protection for religion, though, as only beliefs rooted in religion are

protected by the free exercise clause (Frazee v. Illinois Dept.

Employment Sec. 1989). Thus, a Jew may have a right to wear

a yarmulke, where an atheist may not have a right to particularheadgear. For central, conscience-centered matters, though, the

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irreligious are protected. An atheist can object to the constitutionality

of a compulsory school prayer.

Some have thus argued that the U.S. Constitution protects free-

dom from religion as much as freedom of religion. The right to free

exercise of religion implies the right to free exercise of non-religion

(Sullivan1992, 197). This effect is not limited to the United States.

Gey (2007, 251) reports that the religious liberty jurisprudence in

most constitutional democracies recognizes the need to protect athe-

ists and agnostics, though he recognizes it may at times marginalize

them. However, before the development of modern conceptions of

religious liberty, atheists had no effective legal protection (Gey2007,252). The United Nations standards for freedom of religion are

explicit in the protection of atheist beliefs as well.

Miner (1998, 624) thus argues that religious freedom provides

one of the most vital elements that go to make up the identity of

believers and their conception of life, but it is also a precious asset for

atheists, agnostics, skeptics, and the unconcerned. The European

Court of Human Rights has written that its expression of religious

freedom was

a precious asset for atheists, agnostics, skeptics, andthe unconcerned (Kokkinakis v. Greece 1993). Interestingly, the

study on the association of religion, government regulation, and

personal satisfaction found that less government regulation of reli-

gion also increased life satisfaction among those who were not reli-

gious (Elliott & Hayward2009).

Smith (1991) argues that the constitutional protection of the rule

of law in America has become self-negating. He contends that the

nations commitment to religious freedom had a religious rationale

borne of a religious world view. Yet the interpretation of the First

Amendment, he suggests, has come to forbid governmental reliance

on religious justications, with a secularizing effect. Thus, in its

development, religious freedom has come to have a secularizing con-

sequence. While he is critical of this, others might nd it benecial.

There are three primary types of constitutional provisions rele-

vant to religious freedom: (i) provisions creating or banning a state

religion; (ii) provisions prohibiting the establishment of religion or

calling for separation of church and state; and (iii) provisionsguaranteeing individuals freedom of religious belief. Plainly, a

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constitutional provision barring a state religion benets atheists and

agnostics, who need not be subjected to contrary religious beliefs. A

constitutional provision requiring the separation of church and state

would have much the same effect. Theoretically, a constitutional

provision guaranteeing the free exercise of religion could privilege

religion, but it has been interpreted to guarantee the free exercise of

nonreligious beliefs, so it too should benet the irreligious. Thus,

freedom of religion is not intrinsically pro-religion; it is fundamen-

tally pro-choice for individual decisions of conscience. Freedom of

secular belief is important (Boyle & Sheen1997).

The irreligious are not equally protected by the Constitution,though, with one example being the ministerial exception to general

legislation. Religious organizations are free to hire and re clergy,

without respect to antidiscrimination laws, for example, and courts

generally do not even consider the possible presence of a contrary

compelling state interest (Tebbe2011). This is true even for decisions

made for nontheological reasons. No comparable protection extends

to the irreligious. Historically, there are various other decisions in

which courts have allowed some discrimination against the irreli-gious (Tebbe 2011, 11501151). When the Supreme Court allowed

the Amish the right to remove their children from school, it expressly

said that this right would not extend to someone driven by purely

secularmotivations (Wisconsin v. Yoder1972, 215216). The consti-

tutional protections for freedom of religion have provided material

support to nonbelievers, but the protection is not fully as strong as for

the religious. In other areas, though, such as government funding,

the religious are more constrained by the Constitution than the

irreligious.

John Rawls (1996) focuses on religion as a core freedom. He

argues that such freedom is as important as respect for quality and

notes that religion represents a comprehensive doctrine regarding

the meaning of life, in which individuals typically engage. He argues

for a doctrine of liberty of conscience, whether or not this involves a

belief in an established religion. This is consistent with those who

question the need for special protection of religion itself.

Nussbaum (2008) expands upon this Rawlsian interpretation.She notes that Americas constitutional protection speaks of religion,

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not conscience, and that religion is thus legally privileged over some

other personal beliefs. The American Constitution was written at a

time when religious persecution was apparent, but nearly everyone

ascribed to some sort of religious belief. Atheists and agnostics have

grown in numbers and have suffered their own repression over more

recent years. Nussbaum believes that the concept of religion, as

protected by the constitutional freedom, should be viewed as extend-

ing to any matters of fundamental conscience. This approach is not

dramatically unlike the result reached by the U.S. Supreme Court.

There is even an argument that constitutional freedom of religion

favors the irreligious, in that it implies secularism(Engel2011, 9).It precludes the state from imposing religious beliefs on its people. By

its nature, religion governs the lives of believers, and it is a small step

to using the government to govern the lives of all. Religious groups

commonly involve themselves in politics, trying to make their values

ofcial ones, such as seen by Americas religious right (arguing

against abortion) and left (arguing for equality of rights). Freedom

of religion necessarily allows such efforts, but it more fundamentally

limits them, at least in the imposition of religious beliefs on others.Religious liberty puts political importance on nonreligious justica-

tions for policy positions. The religious justication for the freedom

may have been dominant in the creation of the First Amendment, but

it is seldom heard by contemporary courts, which have secularized

the right (Smith1991).

The traditional liberalism associated with free-exercise guaran-

tees arguably is secularist in nature (Liviatan 2011). Religion argu-

ably contradicts the commitment to total human freedom of choice.

Most religions favor some sort of social control that runs up against

the tenets of classical liberalism. By fully embracing individual free-

dom of choice, even religious freedom limits religion.

The establishment clause surely respects the beliefs of those

without religion. It essentially prevents religious values from being

written into the nations laws. Even seemingly neutral policies, such

as a compulsory moment of silence in schools, may be invalidated, if

adopted for a religious purpose (Wallace v. Jaffree 1985). The primary

standard for applying the clause requires that to be constitutional astatute have a secular purpose and must not have a primary effect of

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advancing or inhibiting religion (Lemon v. Kurtzman 1971). The

government has been stripped of all power to tax, to support, or

otherwise to assist any or all religions (Everson v. Board of

Education 1947, 11). The First Amendment not only protects religion

from the state, it also exists to protect the state from religion. The

establishment clause has been applied with some inconsistency, and

it allows some actions seemingly favorable to religious beliefs, but it

has frequently been used to protect the irreligious. Moreover, it gives

the courts a path to protect the irreligious if the courts so choose.

Indeed, the establishment clause might not be considered free-

dom of religion, insofar as it prevents help given to religions. Ofcourse, such a clause promotes freedom because it prevents a state

religion. But by barring nondiscriminatory assistance to religion

more broadly, while not constraining assistance to the irreligious,

the clause is in some ways essentially antireligious. Thus, McConnell

(2000) suggests that constitutional religious freedom is a necessary

provision to balance out the antireligious effect of an establishment

clause. In any event, such a provision should benet the irreligious.

Hirschl (2010, 13) examines the application of constitutionalprotections of religion in various countries and concludes that con-

stitutional law and courts in virtually all such polities have become

bastions of relative secularism, pragmatism, and moderation,

thereby emerging as effective shields against the spread of religiosity

and increased popular support for principles of theocratic gover-

nance. Raday (2009) argues that constitutionalism is intrinsically

secular and that this is vital to the protection of human rights.

Constitutions themselves become objects of worship, perhaps

competing with relig

2015. Frank B. Cross-Constitutions and Religious Freedom-Cambridge University Press.pdf

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